Tate & Associates

Memoranda
To: Meagan Tate
From: Erin Barbro
Date: October 18, 2017
RE: Ms. Susan Foster

ISSUES PRESENTED

I. Are high school students protected under the First Amendments Freedom
of Speech?
II. Can the high school only penalize Ms. Foster for her silent protest?

BRIEF ANSWER

I. Yes, high school students are protected under the Freedom of Speech
clause in the First Amendment.
II. Yes, the high school can target only one form of silent protest due to the
previous acts that disrupted classrooms.

STATEMENT OF FACTS

On September 15, 2016, Ms. Foster and other students argued about the war on
terror in the Middle East countries, escalating to yelling and name calling. One week
later, Ms. Foster had a petition drive on school grounds during school hours. Counter-
protestors arrived and another argument ensued in the hallways. Two teachers had to
stop their classes to stop the arguing. Principal, Mary Jones, met with Ms. Foster and
required her to stop protesting the war on terror.
Ms. Fosters civics teacher, George Konstantinopoulos, assigned his students to
write a report and give an oral presentation on a current political issue. Ms. Foster did
her presentation on her view of the war on terror, and gave her speech on November
21st. This ended in the other students arguing in class, with one student even threatening
physical harm to another. Although, Ms. Foster did not participate in the arguments,
Mr. Konstantinopoulos cancelled Ms. Fosters presentation because he worried about
the students chaotic behavior. He reported this incident to the principal, informing her
that Ms. Foster did not participate in the argument, but her presentation caused the
behavior.
Ms. Jones met with Ms. Foster to warn her that she would be suspended from
school the next time she spoke about her views on the war on terror. On November 22,
2016, Ms. Jones sent a memo to all students banning any discussion of the war on
terror during school hours to keep the students from disrupting the regular school day.
Any students who would instigate or be involved, would be subject to discipline.
On December 6, 2016, Ms. Foster wore a t-shirt with the words Love not War
written on it, and handed approximately 50 others out to classmates who shared her
views. The administration was not aware of any incidents that broke out because of the
t-shirts, but Ms. Foster was suspended for 2 weeks. Ms. Foster attempted to discuss her
suspension with Ms. Jones because she did not specifically reference the war. Several
other students wore shirts which included the same words, love and war, but none of
the other students were reprimanded.

APPLICABLE STATUTES

The First Amendment states that Congress shall make no law respecting an
establishment of religion or prohibiting free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the people to peaceably to assemble, and to
petition the Government for a redress of grievances. U.S. Consti. Amend. I.

ANALYSIS

I. The First Amendment protects a persons freedom to express their beliefs,

including political opinions. A student is protected under the First Amendment on
school grounds, and in school hours, as long as the student is not disrupting the
regularly scheduled lessons. In Tinker v. Des Moines Indep. Cmty. Sch. Dist., the court
held that the students were protected under the First Amendment rights of Free Speech
when the petitioners were quiet and passive. They were not disruptive and did not
impinge upon the rights of others. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393
U.S. 503 (1969). In the present case, at the point of Ms. Fosters suspension, Ms. Foster
was not interrupting the other students, or the classrooms, nor was she breaking the
school rules. However, her presentation did cause other students to cause a disruption,
and the teacher was required to cancel Ms. Fosters presentation. The rule created by
Ms. Jones ordered the children to not discuss the War on Terror or any Middle
Eastern military action, and said that students who were caught debating or protesting
the War on Terror would be disciplined. The other students in Ms. Fosters class were
not reprimanded even though they took part in the discussions.
However, when Ms. Foster first began her protests, many disruptions occurred,
and those teachers were required to stop their classes to settle disputes. After Ms. Foster
was warned several times about protesting due to the disruptions, she began a more
passive approach. After some time had passed, she presented a project to her class that
once again broke out in a disruption. Although Ms. Foster was not involved in the
debates, she was still disciplined for mentioning the War on Terror in the classroom
because it sparked the debate. In Tinker v. Des Moines Indep. Cmty. Sch. Dist., the
court addressed [o]ur problem lies in the area where students in the exercise of First
Amendment rights collide with the rules of the school authorities. 393 U.S. 503, 507
(1969). In the case at hand, we see various instances where Ms. Fosters actions caused
multiple disruptions in classes. We also see Ms. Foster going against school rules when
the school bans discussion of the War on Terror. The school officials knew that Ms.
Foster was heavily protesting the War on Terror. Therefore, when she handed out the
shirt with Love not War written on it, they understood this was in protest to the War
on Terror. Although Ms. Fosters final actions were a silent protest, her actions were
against school rules that students were not allowed to protest, discuss, or instigate
discussions of the U.S. Militarys actions in the Middle East.
In the present case, Ms. Foster wore and provided other students with shirts that
displayed Love not War. This compares to Tinker where students wore black
armbands to school to silently protest the war in Vietnam. In Tinker, the school banned
the armbands specifically when they became aware of the students plan to wear them to
school to protest Vietnam war. This was rule was in effect before the students even
began wearing the armbands, due to the facultys fear of disruption. The court ruled that
undifferentiated fear or apprehension of disturbance is not enough to overcome the
right to freedom of expression. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.
503, 508(1969). This is different from our present case because there was proof of the
multiple disturbances where teachers had to stop their classes due to the disruption
caused by Ms. Fosters actions. According to Tinker, since Ms. Fosters protesting
disturbed classes on multiple occasions, her actions would not be protected in a school
setting. The school will be justified in creating the rule to ban the protest of the War on
Terror, because the ban commenced after many occasions of disturbing classes. Ms.
Foster may not have a strong argument against the school because of the amount of
disruptions her protesting has caused. It is in the schools best interest to protect the
normal progress of learning, which is what they did when Ms. Jones created the rule
banning any discussion of the War on Terror.

II. Ms. Fosters shirts, which displayed Love not War, were singled out when it
came to disciplining students for wearing a slogan that related to the war, because many
other students wore shirts with similar statements on them. Some examples given were
Love Wins, Love>Hate, No Nukes, History not Hate, and But her emails
None of these students were disciplined, and Ms. Jones refused to acknowledge these
shirts when Ms. Foster brought them to Ms. Jones attention. Ms. Jones only included
the War on Terror in her Memo to the students regarding the ban. This shows that Ms.
Foster was targeted with the ban on the discussion of War on Terror. However, Tinker
states that a particular symbolwas singled out for prohibition. Clearly, the prohibition
of expression of one particular opinion, at least without evidence that it is necessary to
avoid material and substantial interference with schoolwork or discipline, is not
constitutionally permissible. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.
503, 511(1969). This means that if Ms. Foster would not have been disrupting the
classes, then she would be protected under the First Amendment for being singled out in
protest. However, since Ms. Foster caused the disruptions with her protest, the school is
justified in singling Ms. Foster out for disciplining only her shirts displaying Love not
War.
CONCLUSION

There are arguments for Ms. Fosters case, but Ms. Fosters First Amendment
rights were not clearly violated. She was allowed to protest initially, but due to the
disruptions it caused, she and the other students were banned from discussing the
specific topic of the War on Terror, and any U.S. Military action in the Middle East.
The court will likely not follow the precedent of Tinker v. Des Moines Indep. Cmty. Sch.
Dist., 393 U.S. 503(1969) because of the disruptions that Ms. Foster caused in school for
the other students. However, since Ms. Foster was suspended when she took part in a
silent protest, there may be a good argument against the school for violating her
freedom of expression.